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Dana Milbank: Donald Trump, constitutional scholar

There oughta be a law!

The great lawgiver Donald Trump arose before the sun Tuesday pondering one of the finer points of jurisprudence and, at the tender hour of 5:24 a.m., composed his own mini law-review article on Twitter.

His Honor had determined that Google searches for “Trump News” were “RIGGED” so that “almost all stories & news is BAD.” He asserted that mainstream news articles (“fake news”) got priority over material friendly to Trump. “Illegal?” he asked.

Why, yes. Yes, it is illegal. We know this because no less an authority than Trump himself already established a precedent, last month finding Twitter guilty for failing to give Republicans sufficient prominence. “We will look into this discriminatory and illegal practice at once!” he vowed.

The law according to Trump is not always Solomonic. Last week, he decreed that “flipping” – a fixture of trial law in which little fish get immunity to testify against bigger fish – “almost ought to be illegal.” This may have had something to do with his former personal lawyer, Michael Cohen, potentially flipping against him.

By contrast, Trump ruled that Cohen’s actual crimes ought to be legal. “Cohen plead guilty to two counts of campaign finance violations that are not a crime,” Trump tweeted after Cohen admitted he attempted to affect the election by using unreported funds to buy the silence of women alleging affairs with Trump.

The bedrock principles of Trumpian jurisprudence can be summarized in his own words:

“No. 1, there is no collusion.”

“No. 2, collusion is not a crime, but even if it was a crime, there was no collusion.”

A corollary holds that obstruction of justice is also not a crime because “it would seem very hard to obstruct justice for a crime that never happened! Witch Hunt!”

By contrast, everything done by special prosecutor Robert Mueller can be placed in one of three baskets of criminal offenses: “illegal,” “ILLEGAL!” or “SO ILLEGAL!”

First-year students of Trumpian jurisprudence are puzzled to learn that some crimes are legal and some legal acts are criminal. This confusion comes from a textual discrepancy. The U.S. Constitution, as written, has seven articles. But Trump’s Constitution has 12.

During the campaign, Trump informed a group of lawmakers who asked for his views of Congress’s Article I powers: “I’m for Article I. I’m for Article II. I’m for Article XII.”

Trump’s discovery of five previously nonexistent articles in the Constitution gives him broad leeway in interpreting law – making him a modern-day Hammurabi or Confucius.

Though lower courts such as the Supreme Court ruled the “individual mandate” in Obamacare constitutional, Trump struck it down as “so unconstitutional.” The Constitution gives Congress the power to tax, but Trump claimed he alone can cut taxes on investors. Trump, perhaps using his Article IX authority, also determined that trade deals are “unconstitutional” if “there’s no end date” in them.

The common thread to Trumpian law: Stuff he and his allies do is legal, even if previously outlawed; stuff his opponents do is illegal, even if previously kosher.

For example, Trump declared in June that polls showing him doing poorly are a form of “suppression” and “should be illegal.” He decreed it “perhaps illegal” for a lawyer to tape a client after Cohen did that to him.

Much of what the Obama administration did: illegal. What the Democratic National Committee did to Bernie Sanders: illegal. Leaks published in the Amazon Washington Post: illegal. James B. Comey’s memos: “so illegal.” Attorney General Loretta E. Lynch’s actions: “totally illegal!” The actions of those investigating Russian election interference: “illegal surveillance,” “illegal activity,” an “illegal scam,” an “illegal Rigged Witch Hunt,” “totally UNCONSTITUTIONAL.”

By contrast, when Trump’s former campaign chairman was convicted last week, Trump called the prosecution a “disgrace.” And former sheriff Joe Arpaio, convicted of criminal contempt, got a Trump pardon because he “was very unfairly treated by the Obama administration.”

Just as “fake news” means “unflattering news,” Trump’s view of illegality is less about the crime than the perpetrator. After securing the release of American basketball players imprisoned in China for shoplifting, Trump decided that “I should have left them in jail!” – because one of their fathers was unappreciative of Trump.

Now, following Trump’s early-morning Google tweet, White House official Larry Kudlow says “we’re taking a look” at regulating Google searches.

Of course, there’s a more compelling explanation than search-engine bias for all the bad news Trump is finding on the web. It’s called reality. But that doesn’t matter. As Article XII of the Constitution clearly states, the merits of the case do not affect the verdict.

Dana Milbank is a columnist with the Washington Post Writers Group.


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